Luke Clements

Luke Clements is the Cerebra Professor of Law at Leeds University and is a solicitor.

Care Planning

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Briefing by Luke Clements ~ updated August 2017.  For corrections or suggested additions please contact anjames57@gmail.com

 

Under the previous legal regime the object of a community care / carers assessment was to determine (among other things) whether there was a need for ‘services’ – and the legislation[1] contained exhaustive lists of services that could be provided for adults in need.  The 2014 Act repeals these statutes and provides an illustrative list of ‘ways in which a local authority may meet needs’ (for people in need and / or carers), namely:

a) accommodation in a care home, children’s home or in premises of some other type;
b) care and support at home or in the community;
c) services, goods and facilities;
d) information and advice.
e) counselling and advocacy;
f) social work;
g) payments (including direct payments);
h) aids and adaptations;
i) occupational therapy.

 

Duty to meet needs (sections 35 – 45)

The Act (as with the previous legislation) places a duty on local authorities to meet the eligible needs of adults.  It however strengthens the nature of this ‘right’ in relation to ‘children in need’ and for carers as it converts what was formerly a ‘target duty / power’ into a specific duty to have their eligible needs met.  There is, in addition, a duty to meet the needs of people who, although their needs are insufficient for the purposes of the ‘eligibility criteria’ are nonetheless considered to be at risk of abuse or neglect.  This provision is considered under ‘safeguarding’ below.

As with the previous law:

  • a local authority’s primary responsibilities are to persons ‘ordinarily resident’ in their area (section 194) or to children ‘within the local authority area’;
  • a local authority has power to provide care and support for those whose needs are insufficient for eligibility criteria purposes; and
  • certain people are ineligible for support if they are subject to immigration control (section 46).

Separate sections address the duties in relation to adults, disabled children, carers of adults and carers of children and these are considered below.

 

The duty to meet the needs of adults (section 35)

The duty to meet the care and support needs of an adult are little different to those under the previous legal regime – save only that this duty is extended to self-funders (below).  Section 35(6) states that the duty to meet the needs of an otherwise eligible adult ‘does not apply … to the extent that the local authority is satisfied that those needs are being met by a carer’.  The potentially negative impact of this provision can be neutralised if (as discussed above) the carer has been explicit in stating: (a) they are unwilling to provide care unless (and until) the individual is assessed as eligible; and (b) that even then the nature and extent of the care (if any) they might be willing to provide will have to be the subject of specific discussion and specific agreement.

 

Self-funders

Section 35(4)(b) places a duty on local authorities to meet the eligible needs of adults ordinarily resident in their area:

  • … [whose] … financial resources are at or below the financial limit,
  • … [whose]… financial resources are above the financial limit but the adult nonetheless asks the authority to meet his or her needs; or
  • … [who lack] capacity to arrange for the provision of care and support and there is no person authorised to make such arrangements under the Mental Capacity Act 2005 or otherwise in a position to do so on the adult’s behalf.

As (ii) makes clear, therefore, the duty to meet the needs of adults extends to ‘self funders’ – ie people who have assets above the financial limit (£24,000[2]) and who ask the local authority to meet their needs.

For care home residents there could be a significant incentive for self-funders to ask the local authority meet their needs as they seek to get the price of their placement at the local authority rate (rather than the self funder rate): a change that may have a distorting impact on the market.[3] Self-funders are however liable for the full cost of the placement and may have an additional cost if authorities make a charge for ‘putting in place the arrangements for meeting’ these needs (section 59(3)).[4]  Part 4 Code of Practice (Meeting Needs) (para 75) advises:

In some circumstances an individual with means above the financial limit may need support from the local authority to make arrangements for their care and support. … . If the needs meet the eligibility criteria and the individual asks the authority to meet those needs, the local authority will be under a duty to make arrangements with the placement provider. In such cases the local authority will be the contract holder with the provider and the individual will be deemed to be ordinarily resident in the area of the local authority in which they were ordinarily resident immediately before the placement, such that the local authority which made the placement would continue to be responsible. The rate at which the local authority commissions the placement is a matter for local authority determination

 

Cap on costs

The major incentive for self-funders to seek a local authority assessment of their eligible needs would have come about if the Welsh Government had introduced a ‘cap on care’ costs of the kind proposed, but now abandoned in England.  This – in effect – would have offered self funders a free insurance policy: that if assessed as having eligible needs, there would be a cap on the potential costs that they would have to pay.  The idea, while superficially attractive, is considered by some to be profoundly flawed.[5] In November 2015 the Welsh Government announced that it too would be shelving this policy proposal.[6]

 

The duty to meet the needs of children (section 37)

The 2014 Act materially improves the legal rights of some disabled children to support. Under the previous legislation, although authorities were under a ‘specifically enforceable duty’ to provide community based support services for disabled children,[7] the nature of the duty to provide residential care (such as overnight respite care) and the duty to support non-disabled ‘children in need’ was less clear.  The 2014 Act clarifies the position by placing a specifically enforceable duty on local authorities to provide all children with the care and support they are assessed as needing, or to protect them from harm.

The section 37 duty to meet needs does not apply to children who are ‘looked after’ (s37(6)) – i.e. ‘accommodated’ or subject to a care order. These children are covered by a tranche of provisions under Part 6 of the Act. The duties imposed on local authorities to provide their support under Part 6 largely replicate sections in Part III Children Act 1989 (discussed below). Given that looked-after children have significantly worse well-being outcomes than other children, the purpose of excluding them from s 37 is unclear. This unsatisfactory state of affairs needs to be clarified.

 

Transition

A troubling omission from the Act concerns the absence of provisions detailing local authority responsibilities to disabled children and carers when a young person is in transition into adulthood (apart from for ‘Looked After Children’).  It appears that the Act does not repeal or codify the (often ignored[8]) duty to consider the transition needs of children with Special Educational Needs Statements under the Education Act 1996.[9]  This means that the duties under the Disabled Persons (Services, Consultation and Representation) Act 1986 sections 5 and 6 remain – namely the duty when the child is 14, that the relevant social services officer be contacted with a view to a social care assessment of the young person’s needs being undertaken – so that services are in place when educational provision ceases.

Although the idea underpinning the Act is that local authority responsibilities for disabled people will exist from ‘cradle to grave’ the reality is that different departments and teams with different budgets and local criteria will often be responsible for disabled children to those responsible for adults.  Transition problems will almost certainly occur as frequently as they do under the current legislation.[10]

Good practice dictates that with any transfer of responsibility for care, that the person in need and their carers remain at the centre of the process: that their care, support and well-being needs are maintained throughout the process and that the responsible teams work together and share information in a timely manner to ensure that this happens (see by analogy Annex 2 to the Part 11 Code).

In relation to ‘looked after’ children, under the Part 6 Code of Practice (Looked After and Accommodated Children), the obligation (when a looked after child is about to turn 16) is for the local authority to:[11]

prepare a pathway plan to assist that young person with the transition to adulthood and leaving care. The pathway plan will build upon the child’s existing Part 6 care and support plan, which will be subsumed within the pathway plan

 

The duty to meet the needs of adult carers & young carers (sections 40 – 44)

The Act imposes a duty on local authorities to meet the eligible needs of carers – both adult carers and young carers.  In some of the most convoluted sections and subsections known to social care, the Act then considers all the possible permutations of carers being over / under 18; carers and ‘people in need’ having / lacking capacity to agree to their care arrangements; carers and those ‘cared for’ having assets above and below the financial limits.   The long and the short of it however is that local authorities are under a specifically enforceable duty to provide care and support in such cases unless they can produce cogent reasons / evidence to explain otherwise.

A problematical curiosity concerning young carers is that they are only entitled to support if (among other things) their needs meet the eligibility criteria (section 42(3)).  Adults and children in need are however entitled to support if they are at risk of abuse or neglect (even if they fail to meet the eligibility criteria).  This important exception does not apply to young carers. The reasoning is almost certainly that a young carer who is at risk of abuse is likely to be eligible in their own right (ie as a ‘child in need’) – as Part 4 Code of Practice (Meeting Needs) para 40 explains:

As is the case with adults, a local authority must meet the needs of children which the local authority considers it is necessary to meet in order to protect the child from abuse or neglect or a risk of abuse or neglect or in order to protect the child from other harm or risk of such harm. This is an overriding duty on a local authority irrespective of any application of, or outcome from, the determination of eligibility. A local authority’s duties in respect of looked after children are contained within Part 6 of the Act.

 

Short break services

Unlike in England, there is no Welsh legislation (from April 2016) that is specifically labeled ‘short breaks’ or targeted on the rights of families with disabled children to ‘short breaks’.  The previous provisions were repealed by the 2014 Act and this has been the subject of adverse comment.[12]  The Welsh Government has however undertaken to publish guidance (a ‘technical briefing’) concerning the continuation of the duties for provision of short breaks.  The commitment to produce such guidance was noted in a 2014 Children’s Commissioner for Wales report[13] concerning short breaks.  It stated that the ‘benefits of short breaks for children and young people cannot be underestimated’ and that ‘positive feedback from children and families about the value of their short breaks provision has been overwhelming’ (p7).  At page 11 of the report it was noted that:

Welsh Government has committed to ensuring that the continuing need for short break service provision is recognised in the regulations and codes of practice which will accompany the Social Services and Well-Being (Wales) Act.

 

While such guidance will be a welcome addition, it is clear that the core provisions of the Act are designed to provide a range of support services for families with disabled children and (although not specifically named) ‘short breaks’ are one of these essential support services.

Once a local authority has determined that a disabled child (or her / his carers) have eligible needs, then the authority must prepare a plan[14] that explains the ‘operational detail’ – the ‘how, who, what and when’.[15]  The plan must describe how the need is to be met, by whom, in what way and when this will be done.  As the Ombudsman has stressed, an assessment must result in a care plan that identifies the child’s needs, what is to be done about these needs, by whom and when.  If a direct payment is made, it must specify precisely what need these payments are intended to meet, why this level of payment is considered appropriate, or what outcome this will result in.[16] A copy of the assessment record must be offered to the disabled child and their parent(s).[17]

The guidance gives considerable emphasis to the provision of timely support for families, stressing for example that it is ‘important to identify early on what needs the family has and provide appropriate support and / or make appropriate referrals’.[18]

The duty to meet the needs of the child and / or his / her carers is strict in the sense that it is non resource-dependent.  Accordingly, if the assessment identifies a need for (say) 10 hours of sitting services a week, or of one weekend a month for the child to be accommodated away from the home – then this need must be met precisely and it is not something that the local authority can ‘trim’[19] because it has to make cut backs due to resource shortages. [20]

The need for short breaks support may arise either from a disabled child’s assessment or that of his / her carers: as section 34(1) of the 2014 Act explains, a local authority may meet a person’s needs by arranging for ‘something to be provided to a person other than the person with [the assessed needs]’.   Section 34(2) provides examples of what can be provided in such cases and this includes the three most common mechanisms for facilitating short breaks – namely (a) accommodation in a care home, children’s home or premises of some other type; (b) care and support at home or in the community; (g) direct payments.   Examples of (b) would include sitting service (including a night sitting service) as well as a day centre and an after-school (or summer holiday) club.

Where the need has been assessed as eligible, the Act (section 51) and the relevant regulations[21] and guidance[22] enable the parent to require the local authority to make them a direct payment rather than arrange the necessary care.  In such a case the direct payment must be sufficient to purchase the care and support to the required level.  Not infrequently a local authority will have a standard hourly rate which may be insufficient to secure the services of a care worker who requires special skills – and of course in such cases, the local authority  will have to increase the hourly rate to ensure that a suitably skilled person can be retained,

 

Short breaks and ‘looked after’ children

Short breaks can also be provided by the child spending time in an overnight placement: for example, a foster home or respite care centre.  These arrangements are covered by separate regulations[23] and the Part 6 Code of Practice (Looked After and Accommodated Children).  Paras 288 – 301 of the code provide advice on the legal obligations relating to such children (under the heading ‘Short breaks’).  While it emphasises (at para 289) that ‘short breaks will often be provided as part of a disabled child’s care and support plan’ (ie under Parts 3 and 4 of the Act) it states (para 288):

Sometimes it will be appropriate to place a child with a foster carer or in a residential setting for a short period of time only – for example, if the child is disabled and it is necessary to place the child away from home temporarily while the parents have a break from caring.

 

Unfortunately the guidance in the Part 6 Code is far from helpful as to the legal position in such cases.[24]  It suggests (para 290) that where such a placement occurs ‘the local authority may decide’ that the short break support is provided under section 76(1)(c) of the Act.[25]  The guidance provides a list of factors that should be considered in determining whether the care is provided under section 76(1)(c) or under the general duty to meet the needs of the child under section 37 of the Act (at para 292).  Where it is decided that the child is accommodated under section 76(1)(c) then the placement must comply with the relevant ‘looked after’ children regulations[26] – however these will generally be of a lighter touch in terms of administrative record keeping[27] – provided that the child is:

  • not subject to a care order; and
  • is receiving a pre-planned series of short breaks in the same setting, and
  • where (a) no single placement lasts for more than 4 weeks; (b) at the end of the placement the child returns home to the care of the parents; and (c) the short breaks don’t exceed 120 days in a year.

 

Care & support plans (section 54 – 55)

The duty to prepare care / support plans for individuals whose needs have been assessed as eligible is sustained in the new legislation.

In preparing a care / support plan the local authority must involve:

  • the person for whom it is being prepared; together with (if applicable)
  • any person with parental responsibility for the child; and if ‘feasible’
  • the person’s carer / or (in the case of a carer) the person for whom she / he carers.

 

The detail of local authority care planning obligations is provided in The Care and Support (Care Planning) (Wales) Regulations 2015 and the Part 4 Code of Practice (Meeting Needs) although in most respects the process has changed little.  Thankfully the Code avoids the patronising phrase ‘respectful conversations’[28] and makes less use of the word ‘citizen’: language that so bedevilled the 2014 Integrated Assessment, Planning and Review guidance.[29]

 

[1] Primarily s2 Chronically Sick and Disabled Persons Act 1970 and ss 21 & 29 National Assistance Act 1948.
[2] The Care and Support (Charging) (Wales) Regulations 2015 SI 1843 (W. 271) reg 11(2).
[3] Either causing care homes severe financial difficulties or local authorities (if they have to start paying a larger overall rate.)
[4] In such cases there may also an adverse impact on self-funders’ social security benefits (ie the loss of their DLA/PIP or AA / care component).
[5] See for example, L Clements ‘Adult social care law reform’ in Elder Law (2013) Issue 3 Volume 3  pp219-224.
[6] Written Statement – Further Update on Reform of the Arrangements for Paying for Social Care and Support 11 November 2015.
[7] Under the Chronically Sick and Disabled Persons Act 1970, section 2.
[8] See for example Local Government Ombudsmen Reports on complaint 08/001/991 against the Isle of Wight Council, 4 June 2009.
[9] In 2013 the Welsh Government published a ‘Table of intended repeals showing where related provision is found in Bill published 2013’ LFGT048813 Doc 1 with subheading ‘NB this list may be subject to further minor change’.  This document was (at 2nd September 2014 ) no longer accessible on the internet.
[10] See S Broach, L Clements & J Read Disabled Children: A Legal Handbook (Legal Action 2010) chapter 10.  It should also be noted that the key current Act that provides for the needs of disabled people the Chronically Sick and Disabled Persons Act 1970 is also one that applies from the cradle to the grave.
[11] At para 57 and para 398 – 466.
[12] See for example Clements L Why implementation of new Welsh social care legislation must be delayed in Community Care 19th November 2015.
[13] Children’s Commissioner for Wales Full Lives: A study of short breaks provision for children and young people with disabilities and their carers in Wales (2014).
[14] Section 54 Social Services and Well-being (Wales) Act 2014.
[15] R (J) v Caerphilly CBC [2005] EWHC 586 (Admin); (2005) 8 CCLR 255.
[16] Local Government Ombudsman complaint number 13 002 982 against Birmingham City Council 12 March 2014.
[17] Reg 6 The Care and Support (Assessment) (Wales) Regulations 2015 si 1305 (W.111) and para 116 to the Part 3 Code.
[18] Para 70 of the Part 3 Code.
[19] In R v Islington LBC ex p Rixon (1996) Times 17 April; 1 CCLR 119 Sedley J put it thus: ‘The practice guidance … counsels against trimming the assessment of need to fit the available provision’.
[20] Complaint 01/C/03521 against North Yorkshire 19th August 2002.
[21] Care and Support (Direct Payments) (Wales) Regulations 2015 SI 1815 (W. 260).
[22] The Code of Practice on the exercise of social services functions in relation to Part 4 (Meeting needs) of the Social Services and Well-being (Wales) Act 2014.
[23] The Care Planning, Placement and Case Review (Wales) Regulations 2015 SI 1818 (W.261).
[24] The Code, for example, at para 291 suggests that the obligation under this section is a ‘power’ when it is clearly a ‘duty’.  The difficulty arises because section 76 has no ‘power’ to accommodate (unlike section 20(4) of the Children Act 1989) – ie in cases where the child does not meet the strict requirements of s76(1) but nevertheless the authority considers it necessary to treat the child as ‘accommodated’ to safeguard or promote their welfare.
[25] This is broadly equivalent to the duty under section 20(1) Children Act 1989 in England.
[26] The Care Planning, Placement and Case Review (Wales) Regulations 2015 SI 1818 (W.261).
[27] Regulation 62(3) – and see paras 295-301 of the Part 6 Code.
[28] Sadly this phrase does make a guest appearance in the Part 3 Code page 8.
[29] Welsh Government Integrated Assessment, Planning and Review Arrangements for Older People:  Guidance for Professionals in supporting the Health, Care and Well-being of Older People (2014).